3PLR – CHIEF LAITO AJAGBE V. OYEGADE AKANNI
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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CHIEF LAITO AJAGBE
V.
OYEGADE AKANNI
SUPREME COURT OF NIGERIA
23RD NOVEMBER, 1973
SUIT NO. SC 278/1973
3PLR/1973/7 (SC)
OTHER CITATIONS
(1973) All N.L.R 754
BEFORE THEIR LORDSHIPS
MAIN ISSUES
Land Law – Claim for declaration of title – Possession – Injunction to restrain trespass.
Practice and Procedure -Judgment “as per writ of summon.”
REPRESENTATION
Mr. MA Omisade for the Appellant.
Mr. MA Fatoki for the Respondent.
EUAS, C.J.N. (Delivering the Judgment of the Court): This appeal against the judgment of the Western State Court of Appeal in Suit No. CAW/19/71 delivered on January 26, 1973, originated from the judgment of the Oshun North-West Grade “B” Customary Court, Ogbomosho, in which the plaintiff claimed against the defendant for –
(i) “declaration of title to the piece or parcel of land lying, situate and being at Elewede, Alagbodo and Kesa Idewure Village, Ogbomosho,
(ii) an order granting possession of the said… land to the plaintiff;
(ii) injunction to restrain the defendant, his servant or agents from further trespass on the said piece of land.”
The President of the Court found for the plaintiff and the defendant, being dissatisfied with that judgment, appealed to the High Court, Oyo, in which in Suit No. HOY/9A/69 Ogunlami, J. dismissed the defendant’s appeal in his judgment delivered on April 9, 1970. Against that decision, the defendant appealed to the Western State Court of Appeal.
Briefly stated, the facts of the case are as follows. The plaintiff claimed that the land in dispute consisting of Elewede, Magodo and Kass in Dewure Village of which his father Ola was the first head, who is usually given the official name of Onidewure. He claimed that his father gave him the land several years before his death, and that there had been four successive Onidewures named Adegbite, Madandola, Gboyega and the defendant. The evidence of his witnesses was that they had been his tenants on the land for many years during which they had been paying him ‘ishakole’ as tribute. Plaintiff said that the defendant was claiming the land in dispute as stool land, that is, as attaching to the stool of Onidewure, but that the first two Onidewures, Adegbite and Madandola, who reigned immediately in succession after his ova father, never challenged his tide to the land. He said that the first Onidewure to question his right to the land was Gboyega with whom he successfully contested the Onidewure stool before Gboyega died. He again unsuccessfully contested for the stool of Onldewure against the defendant He admitted that both the late Gboyega and the defendant laid claim to the land in dispute as stool land attached to the Onidewure Chieftaincy.
The defendant, on the other hand, called evidence in support of his claim that the land in dispute was stool land, and that whoever was the Onidewure for the time being was entitled to enjoy the use of the land by collecting tributes from the tenants of the land. He called witnesses, one of wham testified that he paid tributes to the defendant. He denied that the land ever belonged to the plaintiff as his private property.
When the High Court dismissed the defendant’s appeal from the Customary Court, he appealed to the Western State Court of Appeal on the following nine grounds:
“1. The learned trial President erred in law in giving judgment to the plaintiff ‘as per writ’ when the evidence of plaintiff disclosed he was not suing Onidewure family and the learned Judge on appeal erred in law in upholding that judgment
- The learned trial President erred in law in giving plaintiff judgment ‘as per writ’ when the plaintiff’s evidence disclosed that the defendant had not disturbed his possession.
- The learned Judge on appeal erred in law in holding that s.209 of the Evidence Act cannot be used for the purpose of evidence without complying with s.208 of the Evidence Act.
- The learned Judge on appeal misdirected himself on the evidence when he held that: ‘some of the boundary-men were called’ whereas no boundaryman was called by either party.
- The learned Judge misdirected himself on the record when he held:
(i) ‘The learned President gave reasons for his disbelieving the evidence of the appellant and his witnesses and showed why he believed the evidence of the respondent and his witnesses.’
Whereas no reasons were given by the learned President for believing the evidence of the plaintiff and his witnesses.
and
(ii) In arguing the omnibus ground, the learned counsel for the appellant contended that Oyetunde Akanli and Ogunkunle Aremu were not sworn before they gave evidence. It is plain from the record that their names appear during the inspection and the learned President did not rely on their evidence in arriving at his decision.’
Whereas the learned President not only referred to them as constituting part of his judgment but said he believed them.
- The learned Judge, having rejected the traditional evidence of the plaintiff, erred in law in giving judgment to plaintiff for declaration of title based upon acts of user when the Judge could not ascertain upon which evidence (traditional evidence or acts of user) the trial President based his belief of plaintiff and his witnesses.
- The learned Judge misdirected himself on the evidence when he held:
(i) ‘There is evidence that he was and he is still receiving ishakole from some of his tenants.’
Whereas two of the three tenants called by the plaintiff gave evidence that they have not paid ishakole for a long time.
and
(ii) ‘His tenants gave evidence in his favour.’
Whereas one of the tenants called by the plaintiff gave evidence that he was paying ishakole to the defendant.
- The learned Judge, having held that Exhibit ‘A’ was not properly tendered, though it had been admitted in evidence by the trial President, erred in law in not ordering a retrial rather than confirming the learned President’s decision. 9. The judgment is against the weight of evidence.”
That Court allowed the appeal only to the extent that the plaintiff’s claim for recovery of possession was struck out, his claim for declaration of title to Elewede, Alagodo and Kesa land as well as his prayer for the grant of an order of injunction being dismissed. Against this decision of the Western State Court of Appeal, the defendant/appellant brought this appeal on the following five grounds:
“1. The learned Judges of the Western State Court of Appeal erred in law by merely considering the written grounds of appeal filed Instead of the submissions urged in support of the particular grounds argued.
- The learned Judges of the Western State Court of Appeal misdirected themselves in law and in fact when they held that the respondent’s writ of summons does not show the appellant as representing Onidewure family thereby confirming the judgment ‘as per writ’ whereas the writ of summons in truth and in fact defined the capacity in which the appellant was sued.
- The learned Judges of the Western State Court of Appeal erred in law and on the facts by holding that ‘the President reviewed the evidence before him and held that he believed the plaintiff which he was entitled to do’ when there was neither a proper or serious review of the evidence nor identification of the issues joined by the parties.
- The learned Judges of the Western State Court of Appeal misdirected themselves in law and on the facts when they held that ‘The learned Judge from the printed evidence was of the view that the traditional evidence was confusing but that the evidence of acts of ownership was sufficient on which the President could give judgment in favour of the plaintiff’ whereas the President made no findings on any acts of ownership and the plaintiff’s claim should have been dismissed.
- The decision is against the weight of evidence.”
Mr. Omisade, learned counsel for the defendant/appellant (hereinafter called appellant) asked and was granted leave to argue the five grounds seriatim. His main contention against Ground 1 is that the Western State Court of Appeal did not consider the particular grounds which he had argued before it, and that the language employed by the Court would seem to amount only to the making of a series of what the various grounds of appeal amounted to without any attempt at a resume and evaluation of the arguments. He submitted that the judgment merely stated in précis form what the grounds of appeal were in a mechanical sort of way; for example, the judgment included a mention of Ground 8 which, according to p.74,1. 8 of the record, he, learned counsel, never argued at all before the Court. Again, the Court observed in its judgment that the defendant was not sued in his representative capacity as Onidewure, whereas it had recorded the following in its notes of evidence:
“Fatoki– Concedes that the action was instituted against the defendant in a representative capacity. From the evidence led, the plaintiff was suing the Onidewure in his official capacity. Therefore action must be regarded as representative action.”
It was learned counsel’s contention that the record of the Western State Court of Appeal contradicted their finding in this respect.
With regard to Ground 2, Mr. Omisade argued that, in addition to his contention that the appellant was sued in a representative capacity, he would point out that the respondent in this appeal now argued that he was not suing the appellant in a representative capacity, and yet he maintained, and it was so held by the Western State Court of Appeal, that he, the respondent, was only suing as ‘per the writ of summons’.
Learned counsel further pointed out that even the High Court found that the record of proceedings in the Customary Court Grade ‘B’ were not properly got up, and that there were many mistakes therein. Learned counsel submitted that tt was wrong of the Customary Court to have given judgment, as it did, “as per the writ of summons” and that the Western State Court of Appeal was equally wrong to have followed suit. He further submitted that, throughout the proceedings from the Customary Court to the Court of Appeal, he was suing in his representative capacity as the Onidewure and on behalf of the Onidewure family. Learned counsel complained that the appellant’s claim in respect of possession was not considered, and drew attention to the evidence of first plaintiff witness that the defendant had not disturbed his possession when in his earlier statement he had stated that the defendant did disturb his possession. Similarly, contradictory evidence that the defendant had not disturbed their possession was given by second and fourth plaintiff witnesses. The final submission by Mr. Omisade is that there is no plan in the present case and yet judgment was given by the Customary Court, the High Court and the Western State Court of Appeal as “per writ of summons.” We agree that the Court of Appeal should have given judgment, not “as per writ of summons,” but by stating clearly and, if possible, separately which of the several claims it was in fact upholding; See the judgment of the Western State Court of Appeal in Daniel Odeyinka and Others v. Ogunjimi (for Lujumo family) Suit No. CAW/9/68 delivered on June 26, 1968.
Under Ground 3, Mr. Omisade’s main contention is that there was no review of the evidence by the Court of first instance -the Customary Court Grade ‘B’; it is not sufficient for the Court merely to have said – “I believe the plaintiff ……… I disbelieve the defendant.” Learned counsel submitted that the Customary Court did not review the evidence before making a peremptory finding as to whom he believed or did not believe, and that the Customary Court should have identified the issues and thereafter evaluated the evidence. We think that there is merit in this contention and that the Western State Court of Appeal is, therefore, wrong to have accepted the findings of the Customary Court which it incorrectly describes as having been the result of a review, when in fact no reasons had been given for the findings: Taiwo v. Ogunsanya (1967) N.M.LR. 375, at p.379; see also Oduyoye v. Oshodi (1972) W.A.C.A. Vol.1, p.15, at p.30 where the Western State Court of Appeal made precisely this point in its judgment.
Mr. Omisade’s submission under Ground 4 is that the President of the Customary Court had made no finding on any acts of ownership, and that the High Court was wrong in finding that although the plaintiff had failed to establish title by traditional evidence, yet he had established title by user and possession. It was clear that the defendant’s evidence was not at all considered before the Judge held that the respondent in this appeal was the exclusive owner of the land in dispute when in fact this had not been established. We agree with learned counsel for the appellant that the learned appellate Judge would appear to have wrongly retried the case on the fact of the printed evidence alone: Udegbe and others v. Nwokafor, (1963) 1 All N.L.R. 417, at p.418, where the Privy Council, in dismissing the appeal from the judgment of this Court, said as follows:
‘The point in the appeal depends entirely on the question whether, indeed, the learned trial Judge did find the necessary facts in favour of the plaintiffs; in other words, whether he was really satisfied.
In these cases the onus lies on the plaintiff to satisfy the court that he is entitled on the evidence brought by him to a declaration of title. Their Lordships refer to the well- known Kodilinye case, the judgment of Chief Justice Webber delivered in 1935, which has often been cited by the Board.
The plaintiff in this case must rely on the strength of his own case and not on the weakness of the defendants case. If this onus is not discharged, the weakness of the defendant’s case will not help him and the proper judgment is for the defendant, he not having sought the declaration. So if the whole evidence in the case be conflicting and somewhat confused, and there is little to choose between the rival traditional stories, the plaintiff fails in the decree he seeks, and judgment must be entered for the defendant.”
We are of the view that, since the respondent failed before the Western State Court of Appeal to establish his claim to exclusive ownership of the land in dispute, judgment should have been given against him: Okunola v. Oluwo (1962) W.N.LR. 133; see also Agededugu v. Ajenluja (1963) 1 All N.L.R. 109, at p.114.
Under the omnibus ground that the judgment is against the weight of evidence, learned counsel for the appellant submitted that the respondent had failed to establish his claim to exclusive ownership of the land; Indeed, he had failed to show by evidence that he was so entitled. Although it is clear that the real issue for determination is as to whether or not the land in question is chieftaincy family land, nevertheless the President of the Customary Court would not appear to have adverted his mind to this at all. The finding by the High Court that the respondent’s witnesses were hostile to him, Mr. Omisade pointed out, should have been balanced by another finding that there was also evidence that the appellant’s witnesses were equally unfriendly to him and also interested in the subject-matter of the suit. Learned counsel also submitted that the appellate Judge found that the names of two witnesses appeared on the record during the inspection of the land but that the President of the Customary Court did not rely on their evidence, whereas there is uncontradicted evidence that the President said that he believed the evidence of the respondent and his witnesses. Finally the finding that the parties agreed as to the description of the land is incorrect, as there was no such evidence adduced or established in respect of the identity of the land. We are of the opinion that, as it is common ground that the land belongs to the Idewure Family, the burden of proof is on the respondent who claims to be the exclusive owner of it: Adenle v. Oyegbade (1967) N.M. LR. 136.
Mr. Fatoki, learned counsel for the respondent, in reply conceded that the respondent has brought the original action in a representative capacity. This was after he had been confronted with the passage previously cited above when the matter was before the High Court. Learned counsel nevertheless maintained that the action was brought by the respondent in his personal capacity. We think that this argument is wholly untenable. When we asked Mr. Fatoki to show us where the Western State Court of Appeal made any reference in its judgment to the arguments and the evidence adduced by both sides before it, he merely contended that the Court of Appeal came to the right conclusion since, according to him, the High Court judgment must be taken as having elaborated on the judgment of the Customary Court. We observe that even the Western State Court of Appeal held that the respondent failed to prove that he inherited the land from his father, although it went on to find as proof of acts of ownership the mere collection of ‘Ishakole’.
Mr. Fatoki also admitted before us that the respondent had conceded in the High Court that the respondent had brought the action in his representative capacity after he had been shown by Mr. Omisade the original writ of summons during the proceedings before the High Court. We think that this admission is also vital to the appeal before us.
For the various reasons we have given above, the appeal succeeds and it is allowed. We make the following orders:
(a) the judgment of the Western State Court of Appeal in CAW/19/71 delivered on January 16, 1973, including the order as to costs, is hereby set aside;
(b) The respondent is not the owner of the piece of land lying, situate and being at Elewede, Alagodo and Kesa, Idewure Village, and there will accordingly be no order for possession nor for an injunction restraining the defendant, his servant or agents from being on the land in question;
(c) Costs assessed at N768 are awarded to the appellant in respect of the proceedings in the Western State Court of Appeal and at N136 in respect of those in this Court.
(d) Costs awarded in the three lower courts, If already paid, should be refunded to the appellant.
Appeal allowed.
